ASTM E2790-20

This international standard was developed in accordance with internationally recognized principles on standardization established in the Decision on Principles for the
Development of International Standards, Guides and Recommendations issued by the World Trade Organization Technical Barriers to Trade (TBT) Committee.
Designation: E2790 − 20
Standard Guide for
Identifying and Complying With Continuing Obligations
This standard is issued under the fixed designation E2790; the number immediately following the designation indicates the year of
original adoption or, in the case of revision, the year of last revision. A number in parentheses indicates the year of last reapproval. A
superscript epsilon (´) indicates an editorial change since the last revision or reapproval.
INTRODUCTION
A need and desire exists to purchase and redevelop environmentally impacted property. Under
federal and state laws, however, purchasers or other owners of environmentally impacted property can
sometimesbeamongthoseliabletoaddresstheenvironmentalimpactseventhoughtheydidnotcause
the impact. Recognizing this as an unintended hindrance to property redevelopment, more recent
federal and state laws provide liability protections for certain innocent owners. These liability
protections,however,areordinarilyconditionedontheperformanceofcertainfutureactivities,known
as “continuing obligations” designed to safely manage or control environmental impacts. Among
others, continuing obligations may include requirements to take reasonable steps to manage
environmental impacts or to prevent unsafe exposure, or requirements to comply with or maintain the
effectivenessofactivityanduselimitations.Theactualcontinuingobligationsthatmaybeneededvary
and depend on site specifics, and could also depend on whether the liability concern involves federal
liability, state liability, or both. In any case, the need for continuing obligations could arise in the short
term and, in some cases, could last for a long time. This guide seeks to provide its users with
information and guidance for establishing a process and, in turn, identifying and performing the
continuing obligations needed in site specific circumstances. By helping users identify and perform
continuingobligations,thisguidecanbeanimportantimplementingtoolforuserswhowishtoqualify
for various federal or state liability protections afforded to innocent owners of environmentally
impactedproperty.Similarly,wheresoundriskmanagementratherthanadesireforliabilityprotection
is the goal, the procedures recommended in this guide can also prove useful.
1. Scope (ILO),the contiguous property owner(CPO),andthe bona fide
prospective purchaser (BFPP) protections from CERCLA
1.1 Purpose—The purpose of this guide is to provide
liability (hereinafter, collectively referred to as the “CERCLA
information and guidance related to the process of identifying
Landowner Liability Protections,” or “CERCLA LLPs”) (see
andfulfilling continuing obligations at commercial real estate,
Legal Appendix X1 to Appendix X3 for an outline of CER-
and forestland and rural property that is contaminated by
CLA’s liability and defense provisions). However, the continu-
hazardous substances within the scope of the Comprehensive
ing obligations arising from CERCLA LLPs are often very
Environmental Response, Compensation and Liability Act
similar to the types of continuing obligations that state laws set
(CERCLA) (42 U.S.C. § 9601 et seq.), petroleum products,or
as conditions for state liability protections. And, therefore, the
other contaminants that require cleanup under federal or state
purpose of this guide seeks to help users who wish to perform
law (collectively hereafter chemicals of concern). Because of
continuing obligations because of concerns over CERCLA
the importance of federal law, this guide largely focuses on
liability and also extends to help users who wish to perform
continuing obligations applicable to the innocent landowner
continuing obligations because of concerns over state law
liability. Similarly, where sound risk management rather than a
1 desire for liability protection is the goal, the procedures
ThisguideisunderthejurisdictionofASTMCommitteeE50onEnvironmental
Assessment, Risk Management and CorrectiveAction and is the direct responsibil-
recommended in this guide can also prove useful
ity of Subcommittee E50.02 on Real Estate Assessment and Management.
1.1.1 Intended Scope of Standard Guide—As a standard
Current edition approved Jan. 1, 2020. Published August 2020. Originally
guide, this document provides a compendium of information
approved in 2011. Last previous edition approved in 2011 as E2790–11. DOI:
10.1520/E2790–20.
and options but does not recommend a specific course of
This guide’s CERCLA discussions are for information purposes only and are
action. As a guide, the purpose of this standard is to simply
not intended and should not be construed as legal opinions or conclusions of law.
increase the awareness of possible techniques or procedures
This guide should not be relied upon to answer legal questions.
Definitions provided in Section 3. All defined terms appear in italics. related to continuing obligations and to offer guidance based
Copyright © ASTM International, 100 Barr Harbor Drive, PO Box C700, West Conshohocken, PA 19428-2959. United States
E2790 − 20
on a consensus of viewpoints, but not to establish a standard conditions provided in those documents are complied with.
practice to follow in all cases. These conditions vary but often include requirements to
exercise appropriate care with respect to environmental im-
1.1.2 Continuing Obligations Under CERCLA—Subsequent
pacts or to comply with activity and use limitations. AULs are
to property acquisition, the Small Business Liability Relief and
employed at many properties remediated under state or non-
Brownfields Revitalization Act of 2002 (the “Brownfields
CERCLA federal programs where CERCLA liability may not
Amendments”), which amended CERCLA, requires persons (a
be of concern but, nonetheless, the AUL and reasonable step
broadtermmeanttocoverindividuals,companies,government
procedures recommended by this guide may provide useful
agencies, and other entities) seeking to maintain CERCLA
procedures for assuring AUL compliance. For example, Michi-
LLPs to establish, by a preponderance of the evidence, fulfill-
gan state law sets “due care” requirements for purchasers of
ment of certain continuing obligations. The continuing obliga-
contaminated properties, mandating that they perform various
tions set forth in the Brownfields Amendments include: (1)
post-purchase duties including, among others, complying with
complying with any land use restrictions established or relied
uponinconnectionwitha response actionata property;(2)not and not impeding the effectiveness and integrity of AULs, and
impeding the effectiveness or integrity of any institutional preventing exacerbation and mitigating unacceptable exposure
controls employed at a property in connection with a response of hazardous substances. Wisconsin also sets legal rules and
administrative guidance covering certain continuing obliga-
action;(3) taking reasonable steps with respect to releases of
hazardous substances, including stopping continuing releases, tions for AULs. Additional states similarly impose continuing
preventing threatened future releases, and preventing or limit- obligations related to AULs.
ing human, environmental or natural resource exposure to
1.1.4 Certain Continuing Obligations Not Detailed in this
prior releases of hazardous substances;(4) providing full
Guide—The procedures recommended in this guide focus on
cooperation, assistance and access to persons who are autho-
continuing obligations pertaining to land use restrictions,
rized to conduct response actions or natural resource restora-
institutional controls, and taking reasonable steps. As noted
tionata property;(5)complyingwithinformationrequestsand
immediately above, CERCLAand similar state laws or admin-
administrative subpoenas; (6) providing legally required no-
istrative programs require other continuing obligations such as
tices with respect to releases of any hazardous substances at a
those related to legally required notices, allowing access, and
property; and (7) the CERLCA LLPs for BFPPs and ILOs also
cooperating with government regulators. These “other” con-
require that all disposal of hazardous substances at the prop-
tinuing obligations are not further discussed in this guide. The
erty occurred prior to property acquisition. The BUILD Act
lackofdetailedtreatmentoftheseother continuing obligations,
further amended CERCLA. Under the BUILD Act, certain
however,doesnotintendtosuggestthattheyarelessimportant
tenants qualify for CERCLA’s bona fide prospective purchaser
or less relevant to maintaining CERCLA LLPs or similar state
protections if the property owner qualifies as a bona fide
liability protections. The user seeking additional information
prospective purchaser, and certain tenants can qualify as bona
will find background on these other continuing obligations in
fide prospective purchasers only if, among other conditions,
Appendix X1 the Legal Appendix to this guide.
the tenants fulfill continuing obligations.
1.1.5 Inclusion of Petroleum Products—Petroleum products
1.1.3 Continuing Obligations at Non-CERCLA
are included within the scope of this guide because they are
Properties—Inmanycases,liabilityprotectionsunderstatelaw
oftenofconcernat commercial real estate.Although petroleum
require the performance of the same or similar types of
products enjoy a limited exclusion from CERCLA liability,
continuing obligations. For example, many states have enacted
current custom and usage generally includes an evaluation of
laws that define bona fide prospective purchaser to read
whether petroleum products may be present on commercial
similarly to the CERCLA definition, including BFPP require-
real estate during pre-acquisition environmental site assess-
ments to exercise appropriate care, to comply with land use
ments. Further, state laws and programs requiring continuing
restrictions or to not impede the effectiveness or integrity of
obligations often cover petroleum products. Thus, this guide
institutional controls. Analogous to CERCLA, some of these
likewise includes petroleum products within its scope. The
state laws may provide state law liability protections for
persons who meet the BFPP definition. In addition, as
described in Guide E2091, several state voluntary cleanup
Guide E2091, § 4.4 (describing AULs described in or attached to state “No
programs provide liability releases within “No FurtherAction”
Further Action” and “Certificate of Completion” certificates as critically important
(NFA) or “Certificates of Completion” documents only if the
for state liability releases). When No Further Action letters or Certificates of
Completion approve risk-based corrective actions, the underlying risk-based con-
ditions or future assumptions may trigger continuing obligations.
See, e.g., R.I. Gen. Laws § 23-19.14-7(2)(i)-(iii) (exemption to liability for
In setting forth these requirements, the Brownfields Amendments use the terms contaminated property purchasers when following requirements listed in remedial
“vessel” and “facility” to describe the subject property. See, for example, CERCLA decision letter, letter of compliance, or enforceable settlement agreement).
§ 101(40), 42 U.S.C. § 9601(40). Since the aim of this guide is to assist the user in See MCL § 324.20101 et seq.
identifying and satisfying continuing obligations at commercial real estate,weuse Continuing Obligations for Environmental Protection, Responsibilities of
theterm“ property”,whichistherelevantsubsetof“facility”throughoutthisguide. Wisconsin Property Owners, PUB_RR_819 (Jun. 2009) (avail. at https://dnr.wi.gov/
See Legal Appendix X1.5. files/PDF/pubs/rr/RR819.pdf).
E2790 − 20
actions discussed in this guide could be useful or prudent if may be released in the future. Therefore, for users who
applied at commercial real estate affected by a release of purchase property where Recognized Environmental Condi-
petroleum products.
tions (RECs) have been identified, this guide is meant to apply
upon property purchase. Users who have gained knowledge or
1.1.6 Discussion of the Related Terms: Activity and Use
reason to know of property releases of chemicals of concern
Limitations, Institutional Controls, Engineering Controls, and
priortothepublicationofthisguide(forexample,wherea user
Land Use Restrictions—The term Activity and Use Limitation
purchased contaminated property years before this guide was
(AUL) is taken from and meant to match the meaning of that
term provided in Guide E2091, to include both legal controls published) may still use this guide. Such users may need to
(that is, institutional controls) and physical controls (that is, reconsider and update the findings and conclusions in any
engineering controls) within its scope. Agencies, existing Phase I (or alternative all appropriate inquiries
organizations, and jurisdictions, however, may define or utilize efforts)inordertofullyutilizethisguide.See5.2.2(addressing
these terms differently. For example, the term “land use presumption of currently valid Phase I/AAI).
controls” is used by the Department of Defense and the term
1.1.10 Determination of No Continuing Obligations Related
land use restrictions is used but not defined in the Brownfields
to Activity and Use Limitations and Reasonable Steps—Section
Amendments. CERCLA, as amended by the Brownfields
5 of this guide recommends a procedure for considering
Amendments, expressly prescribes continuing obligations only
whether continuing obligations covered by this guide are
for institutional controls (ICs) and land use restrictions
required or applicable to the property. Refer to 1.1.3 for a
(LURs), each of which represents a subset of the term AUL.In
summary of continuing obligations that are not addressed in
addition to land use restrictions and institutional controls,
detail by this guide. As addressed in more detail in Section 5,
additional types of AULs, particularly engineering controls,
a determination that no continuing obligations are required can
may exist at a property. While broadly a type of AUL,
be made where neither RECs, institutional controls, nor land
engineering controls could also be required by or be associated
use restrictions exist, and users otherwise have no knowledge
with ICs or LURs.
to indicate the presence of chemicals of concern at the
1.1.7 Properties Covered—In addition to property with
property. Even where a Phase I (or all appropriate inquiries)
AULs, the procedures suggested by this guide are primarily
found RECs, further evaluation (see Section 6) can justify a
intended to cover property where chemicals of concern are
conclusion that no chemicals of concern were released and, in
known to have been (1) released on the property prior to
turn, this conclusion can justify a determination of no continu-
acquisition by the current property owner (2) are present at the
ing obligations. See 5.4, however, discussing the case where
propertyafteracquisitionbythecurrent property owner,dueto
future circumstances could arise that would cause users to
the migration from neighboring property,or (3) are discovered
reevaluate determinations that no continuing obligations are
after property transfer where the Phase I (or other methods of
required.
performing AAI), though properly performed, provided no
1.1.11 Requirements Other Than Continuing Obligations—
reason to know of the presence of chemicals of concern. This
CERCLA and similar state laws provide various liability
guide focuses on these release situations because such situa-
defenses. This guide does not provide guidance on require-
tions tend to give rise to circumstances in which one or more
ments other than continuing obligations that may be necessary
of the CERCLA LLPs, state liability protections or similar risk
to retain eligibility for CERCLA LLPs or other CERCLA or
management concerns drive the need for continuing obliga-
state law defenses. See Legal Appendix X1.2 and X1.3 for
tions at a property.
discussion of CERCLA LLPs and other CERCLA defenses.
1.1.8 Presumption of All Appropriate Inquiries and Desire
1.1.12 Other Federal, State, and Local Environmental
to Qualify for LLPs—Thisguideisprimarilyintendedfor users
Laws—Users are cautioned that federal, state, and local laws
who seek to qualify for any CERCLA LLPs or similar state-law
may impose environmental assessment, remedial action,or
LLPs. Therefore, this guide presumes that its users have
other obligations related to hazardous substances or petroleum
performed or will perform a currently valid Phase I or
products that are beyond the scope of this guide.
otherwise satisfy “all appropriate inquiries” prior to acquisi-
1.1.13 Guide Does Not Provide Legal Advice—As noted
tion of the property. This presumption affects the organization
and structure of this guide because it assumes certain Phase I above, this guide primarily intends to provide information and
activities would have been successfully performed and, in turn, guidance to users who wish to perform continuing obligations
relied on and built upon during the stepwise process suggested for the purpose of maintaining CERCLA LLPs or similar
in this guide. Users who may not need or desire protections liability protections under state law. To serve this purpose, this
underCERCLAorstate LLP,butnonethelessseekguidanceon
guide focuses on technical, scientific, and procedural issues
performing continuing obligations can nonetheless benefit involved with identifying and performing appropriate continu-
from this guide and, in particular, the procedures described in
ing obligations under site-specific circumstances. In order to
Step 3 and Step 4 of this guide’s stepwise process.
explain the context for the various continuing obligations
recommended in this guide, however, the guide sometimes
1.1.9 Timing—Subject to the other scope considerations
makes reference to the law, such as statutory provisions of
described in this section, the procedures in this guide are
intended to be applicable when a user knows or has reason to CERCLA. These discussions are meant for informational
purposesonlyandarenotintendedandshouldnotbeconstrued
know, after the user’s purchase of the property, that chemicals
of concern either (1) have been released at the property or (2) as legal opinions or conclusions of law; nor should any
E2790 − 20
statement in this guide be relied upon as legal advice concern- Section 8 discusses Step 4, providing guidance for a process
ing CERCLA or any legal matter. The CERCLA LLPs involve to select and schedule monitoring requirements for continuing
complicated legal matters with potentially severe conse- obligations.
quences. This guide is not intended to and does not replace Section 9 offers guidance on documentation for (1) state-
legaladvice,andshouldnotbereliedonforanylegalquestion. ments of no continuing obligations on a property,(2)a
No implication is intended that a person must use this guide in continuing obligations plan, and (3) reporting the periodic
ordertoestablishormaintain LLPs.Conversely,noimplication monitoring of continuing obligation.
is intended to assure a person using this guide of success The Appendices provide additional information:
against CERCLA liability when using this guide. The user is Appendix X1 (the Legal Appendix) describes liability and
encouraged to seek legal advice when seeking to establish and defenses to liability under CERCLA, as amended by the
maintain CERCLA liability defenses. In a number of sections Brownfields Amendments, while also providing important dis-
throughout the guide, the guide notes instances where legal cussion on continuing obligations.
issues are particularly relevant and often reinforces the guide’s Appendix X2 provides a recommended table of contents and
overall recommendation to seek the advice of legal counsel report format for a statement of no continuing obligations.
concerning LLPs. Where particular sections do not suggest the Appendix X3 provides a representative form for a statement
need for legal advice, no implication is intended that legal of no continuing obligations.
advice is not recommended or warranted. Appendix X4 provides a recommended table of contents and
report format for a continuing obligations plan.
1.1.14 Documentation—CERCLArequires that a user seek-
ing to retain eligibility for CERCLA LLPs must demonstrate Appendix X5 provides a recommended table of contents and
compliance with continuing obligations by a preponderance of report format for a continuing obligations monitoring and
evidence. While the legal standards may vary, state LLPs may evaluation report.
also require LLP seekers to provide evidence as to continuing Appendix X6 provides a representative form for continuing
obligations. Under CERCLA there is no apparent requirement obligations field investigation, for a simple site.
for written documentation to demonstrate compliance with Appendix X7 provides a representative form for continuing
continuing obligations, but written documentation could be obligations field investigation, for a more complex site.
useful and, perhaps even essential, in cases where a user Appendix X8 develops five scenarios to assist in the appli-
desires to demonstrate the performance of continuing obliga- cation of this guide.
tions. The guide provides guidance in Section 9 on the
1.4 This guide offers guidance on performing one or more
preparation of continuing obligation plans and suggests pro-
specific tasks and should be supplemented by education,
cedures for documenting continuing obligation efforts. Users
experience and professional judgment. Not all aspects of this
are encouraged to consult with legal counsel on steps to be
guide may be applicable in all circumstances. This guide does
taken to document compliance with continuing obligations.
not necessarily represent the standard of care by which the
adequacy of a given professional service must be judged, nor
1.2 Objectives—This guide establishes the following objec-
should this document be applied without consideration of a
tives: (1) provide information and guidance related to proce-
property’s unique aspects. The word “standard” in the title
dures to identify and comply with continuing obligations on
means only that the document has been approved through the
commercial real estate or on forest or rural land; and (2)
ASTM consensus process.
formulate and clarify suggested industry methods and proce-
1.5 This standard does not purport to address all of the
dures for identifying and satisfying continuing obligations that
safety concerns, if any, associated with its use. It is the
are practical, efficient and reasonable.
responsibility of the user of this standard to establish appro-
1.3 Organization of this Guide—This guide has nine sec-
priate safety, health, and environmental practices and deter-
tions and eight appendices. Fig. 1 provides a representation of
mine the applicability of regulatory limitations prior to use.
this guide as a flowchart, and represents decision points for the
1.6 This international standard was developed in accor-
user as the guidance is applied:
dance with internationally recognized principles on standard-
Section 1 is the Scope.
ization established in the Decision on Principles for the
Section 2 lists Referenced Documents.
Development of International Standards, Guides and Recom-
Section 3,Terminology, contains definitions of terms used in
mendations issued by the World Trade Organization Technical
this guide, definitions of terms unique to this guide and
Barriers to Trade (TBT) Committee.
acronyms.
Section 4 discusses the Significance and Use of this guide.
2. Referenced Documents
Section 5 discusses Step 1, a screening process relying on
2.1 ASTM Standards:
the Phase I to help determine whether continuing obligations
E1527 Practice for Environmental SiteAssessments: Phase I
apply to the property.
Environmental Site Assessment Process
Section 6 discusses Step 2, a process for evaluating the
environmental conditions and AULs that may affect the prop-
erty in advance of planning for continuing obligations.
For referenced ASTM standards, visit the ASTM website, www.astm.org, or
Section 7 discusses Step 3, providing guidance for a process
contact ASTM Customer Service at service@astm.org. For Annual Book of ASTM
to select continuing obligations to be performed under site-
Standards volume information, refer to the standard’s Document Summary page on
specific circumstances. the ASTM website.
E2790 − 20
NOTE 1—Continuing obligations may be triggered based in the future as discussed in 5.4.1. Other obligations may exist as discussed in 5.4.2.
FIG. 1 Flowchart of Guide to Continuing Obligations
E2790 − 20
E1903 Practice for Environmental Site Assessments: Phase 3. Terminology
II Environmental Site Assessment Process
3.1 This section provides definitions and a list of acronyms
E2081 Guide for Risk-Based Corrective Action
for many of the words used in this guide. The terms are an
E2091 Guide for Use of Activity and Use Limitations,
integral part of this guide and are critical to an understanding
Including Institutional and Engineering Controls
of the methodologies described herein.
E2205 Guide for Risk-Based Corrective Action for Protec-
3.2 Definitions:
tion of Ecological Resources
3.2.1 activity and use limitations (AULs)—legal or physical
E2247 Practice for Environmental SiteAssessments: Phase I
restrictions or limitations on the use of, or access to, a site or
Environmental Site Assessment Process for Forestland or
facility to eliminate or minimize potential exposures to chemi-
Rural Property
cals of concern or to prevent activities that could interfere with
2.2 Federal Statutes and Regulations:
theeffectivenessofa response action,toensuremaintenanceof
Comprehensive Environmental Response, Compensation
a condition of “acceptable risk” or “no significant risk” to
and Liability Act (“CERCLA”) (42 USC 9601 et seq)as
human health and the environment. These legal or physical
amended
restrictions are intended to prevent adverse impacts to indi-
Small Business Liability Relief and Brownfield Revitaliza-
viduals or populations, or environmental receptors that may be
tion Act (the “Brownfield Amendment of 2002”)
exposed to chemicals of concern.
Brownfields Utilization, Investment, and Local Develop-
NOTE 1—CERCLA expressly lists continuing obligations for institu-
ment Act of 2018 (“BUILD Act”)
tional controls and land use restrictions, each of which represents a subset
“All Appropriate Inquiries” Final Rule, 40 CFR Part 312
oftheterm AULs.Additionaltypesof AULs,suchas engineering controls,
2.3 USEPA Documents: may exist at a property.
Institutional Controls: A Guide to Planning, Implementing,
3.2.2 all appropriate inquiries (AAI)—that inquiry con-
Maintaining and Enforcing Institutional Controls at Con-
ducted prior to the date of acquisition of the subject property
taminated Sites, December 2012
constituting “all appropriate inquiries into the previous own-
Interim Enforcement Discretion Guidance Regarding Con-
ership and uses of the property consistent with good commer-
tiguous Property Owners (Contiguous Property Guid-
cial or customary practice” as defined in CERCLA, 42 U.S.C.
ance), January 2004
§9601(35)(B), and in EPA’s regulations, 40 C.F.R. Part 312,
Institutional Controls: A Site Manager’s Guide to
that will qualify a party to a commercial real estate transaction
Identifying, Evaluating and Selecting Institutional Con-
for one of the threshold requirements that an owner of
trols at Superfund and RCRA Corrective Action Clean-
commercial real estate must satisfy in order to be eligible for
ups, September 2000
any of the landowner liability protections to CERCLAliability
Final Policy Towards Owners of Property Containing Con-
(42 U.S.C. §9601(35)(A) & (B), §9607(b)(3), §9607(q); and
taminated Aquifers—Memorandum (Contaminated Aqui-
§9607(r)), assuming compliance with other elements of the
fer Policy), May 1992 defense.
Revised Enforcement Guidance Regarding the Treatment of
3.2.3 appropriate care—CERCLA defines BFPPs as per-
Tenants Under the CERCLA Bona Fide Prospective Pur-
sons who, among other things, exercise appropriate care with
chaser Provisions, Dec 2012
respect to hazardous substances by taking reasonable steps to
Advanced MonitoringTechnologies andApproaches to Sup-
stop any continuing release, prevent any threatened future
port Long-Term Stewardship. July 2018.
release, and prevent or limit human, environmental, or natural
Enforcement Discretion Guidance Regarding Statutory Cri-
resource exposure to any previously released hazardous sub-
teria for Those Who May Qualify as CERCLABona Fide
stances. 42 U.S.C. §9601(B)(iv). Appropriate care is one of
Prospective Purchasers, Contiguous Property Owners, or
several continuing obligations.
Innocent Landowners (“Common Elements”). July 2019
3.2.4 bona fide prospective purchaser (BFPP)—a person
2.4 Other Relevant Documents:
who meets the criteria set forth in CERCLA §101(40) (42
Association of State and Territorial Solid Waste Manage-
U.S.C. §9601(40)) qualifies as a bona fide prospective pur-
ment Officials (ASTSWMO), State Approaches to Moni-
chaser. Generally, a BFPP can be a person who purchases or
toring and Oversight of Land Use Controls, October 2009
acquires a leasehold interest in property that was already
Interstate Technology Regulatory Council, An Overview of
contaminated. Among other requirements, BFPPs must make
Land Use Control Management Systems, December 2008
all appropriate inquiries and perform continuing obligations,
Uniform Environmental Covenants Act (available at http://
however certain exceptions to the requirements to perform all
www.environmentalcovenants.org)
appropriate inquiries and continuing obligations apply to
Uniform Fire Code, National Fire Protection Association
leasehold interest BFPPs based on whether the owner of the
International Fire Code, International Code Council
property qualifies as a BFPP. Persons meeting the definition of
Standard Definition of Petroleum Statistics, American Petro-
BFPP may, in accordance with the provisions set forth in
leum Institute, Fourth Edition, 1998
CERCLA§107(r)(42U.S.C.§9607(r)),qualifyforCERCLA’s
Interstate Technology Regulatory Council, Long Term Con- BFPP landowner liability protection, which provides a poten-
taminant Management Using Institutional Controls (2017) tial defense for such persons from the meaning of “owner” or
(available at http://institutionalcontrols.itrcweb.org/). “operator” as defined by CERCLA. The property must have
E2790 − 20
been acquired after January 11, 2002. See Legal Appendix 3.2.11 continuing obligations—refer to post property acqui-
X1.3.2 listing and citing the statutory provisions for the BFPP sition steps meant to appropriately manage any chemicals of
criteria. concern at the property for the purposes of legal liability
protection, risk management, or other purposes, including
3.2.5 Brownfields Amendments—amendments to CERCLA
those steps enumerated by the Brownfields Amendments which
contained in the Small Business Liability Relief and Brown-
require persons (a broad term meant to cover individuals,
fields Revitalization Act, Pub. L. No. 107-118 (2002), 42
companies,governmentagencies,andotherentities)seekingto
U.S.C. §§9601 et seq.
maintain CERCLA LLPs to establish, by a preponderance of
3.2.6 Build Act—amendments to CERCLA contained in the
the evidence, fulfillment of certain steps or procedures includ-
Brownfields Utilization, Investment, and Local Development
ing: (1)complyingwithany land use restrictionsestablishedor
Act, enacted as part of the Consolidated Appropriations Act
relied upon in connection with a response action at a property;
2018, Pub. L. No. 115-141 (2018).
(2) not impeding the effectiveness or integrity of any institu-
3.2.7 CERCLA LLPs—Landowner liability protections un-
tional control employed at a property in connection with a
der CERCLA, which include the bona fide prospective
response action; (3) taking reasonable steps with respect to
purchaser, contiguous property owner, and innocent land-
releases of hazardous substances, including stopping continu-
owner LLPs. See 42 U.S.C. §§9601(35)(A)-(B), 9601(40),
ing releases, preventing threatened future releases, and pre-
9607(b), 9607(q), 9607(r).
venting or limiting human, environmental or natural resource
exposure to prior releases of hazardous substances; (4) provid-
3.2.8 chemicals of concern—means hazardous substances
ing full cooperation, assistance and access to persons who are
or petroleum products or any specific compounds and their
authorized to conduct response actions or natural resource
breakdown products that are identified under federal environ-
restoration at a property; (5) complying with information
mental laws, state cleanup programs, voluntary cleanup pro-
requests and administrative subpoenas; and (6) providing
grams or other state or federal corrective action laws or
legally required notices with respect to releases of any hazard-
regulations as requiring response action.
ous substances at a property. Many State laws or state cleanup
3.2.9 commercial real estate—any real property except a
programs list similar continuing obligations as conditions for
dwelling or property with no more than four dwelling units
stateliabilityprotections.Thisguideaddressesthefirstthreeof
exclusively for residential use (note, however, that a dwelling
these continuing obligations.
or property with no more than four dwelling units exclusively
3.2.12 continuing obligation plan—a plan prepared by the
for residential use is included in this term when it has a
user to identify continuing obligations and procedures to be
commercial function, as in the building of such dwellings for
taken post-acquisition of the property to satisfy any continuing
profit). This term includes but is not limited to undeveloped
obligations.
real property and real property used in industrial, retail, office,
agricultural, other commercial, medical or educational pur- 3.2.13 continuing obligations evaluation report—a docu-
poses; property used for residential purposes that has more ment prepared periodically by the user to document the
than four residential dwelling units; and property with no more satisfaction of any continuing obligations.
than four dwelling units for residential use when it has a
3.2.14 continuing release or continuing releases—for the
commercial function, as in the building of such dwellings for
purposes of this guide, means any ongoing release from a
profit.
man-made container or repository.
3.2.10 contiguous property owner (CPO)—a person who
3.2.15 controlled recognized environmental condition—
meets the criteria set forth in CERCLA § 107(q)(1)(A) (42
means controlled recognized environmental condition as de-
U.S.C. § 9607(q)(1)(A)) qualifies as a contiguous property
fined by Practice E1527. In summary, controlled recognized
owner. Contiguous property owners are persons who own
environmental condition means a type of REC (1) affecting the
commercial real estate that is contiguous to and that is or may
subject property, (2) resulting from a past release of hazardous
be contaminated by hazardous substances from other property
substances or petroleum products, (3) that has been addressed
that is not owned by that person. To qualify as CPOs, among
to the satisfaction of the applicable regulatory authority or
other requirements, persons must have conducted all appropri-
authorities, (4) with hazardous substances or petroleum prod-
ate inquiries and perform continuing obligations. Persons
ucts allowed to remain in place, and (5) is subject to imple-
meeting the definition of contiguous property owner may, in
mentation of property use restrictions or activity and use
accordance with the provisions set forth in CERCLA §107(q)
limitations.
(42 U.S.C. §9607(q)), qualify for the CERCLA contiguous
3.2.16 dwelling—structure or portion thereof used for resi-
property owner LLP, which provides a potential defense for
dential habitation.
such persons from the meaning of “owner”or“operator”as
3.2.17 engineering controls (ECs)—physical modifications
defined by CERCLAand, therefore, could relieve such persons
to a site or facility to reduce or eliminate the potential for
from CERCLAliability that would be triggered based on their
exposure to chemicals of concern (for example, slurry walls,
status as an “owner”or“operator ”. Knowledge of contami-
capping, hydraulic controls for ground water, or point of use
nation resulting from all appropriate inquiries would preclude
water treatment). An engineering control is a type of AUL.
this liability protection. See Legal Appendix X1.3.3 for the
other necessary requirements that are beyond the scope of this 3.2.18 environmental professional—a person meeting the
guide. education, training, and experience requirements as set forth in
E2790 − 20
40 C.F.R. §312.10(b) and as described in Appendix X2 of 3.2.23 IC/EC registries—databases of institutional controls
Practice E1527. The person may be an independent contractor or engineering controls that may be maintained by a federal,
or an employee of the user. state or local environmental agency or a private entity for
purposes of tracking sites that may contain residual contami-
3.2.19 environmental site assessment (ESA)—theprocessby
nation and AULs. The names for these databases may vary
which a person or entity seeks to determine if a particular
from program to program and state to state, and include terms
parcel of real property (including improvements) is subject to
such as the Declaration of Environmental Use Restriction
recognized environmental conditions.An environmental site
database, “deed restrictions” lists, environmental covenants
assessment may include more inquiry than that constituting a
lists, Brownfields site lists, and environmental covenant regis-
Phase I or more inquiry necessary to perform all appropriate
tries established under the Uniform Environmental Covenants
inquiries or, if the user is not concerned about qualifying for
Act.
CERCLA LLPsorsimilarstate LLPs,lessinquirythanrequired
for a Phase I or for performing all appropriate inquiries.An 3.2.24 innocent landowner (ILO)—a person who meets the
environmental site assessment is both different from and
criteria set forth in CERCLA§§101(35), 107(b)(3) (42. U.S.C.
typically less rigorous than an environmental audit. §§9601(35), 9607(b)(3)) qualifies as an innocent landowner.A
person may qualify as one of three types of innocent landown-
3.2.20 exposure—contact of an organism (human or eco-
ers:(i) a person who “did not know and had no reason to
logical receptor) with a chemical(s) of concern at the exchange
know” that hazardous substances existed on the property at the
boundaries (for example, skin, lungs, and liver) when the
time the purchaser acquired the property;(ii) a government
chemical(s) of concern is available for absorption or adsorp-
entity which acquired the property by escheat, or through any
tion. For purposes of this guide, exposure to chemicals of
other involuntary transfer or acquisition, or through the exer-
concern only includes exposures to levels that exceed those
cise of eminent domain authority by purchase or condemna-
levels determined to be acceptable by applicable government
tion;and(iii)apersonwho“acquiredthefacilitybyinheritance
agency or scientific standards.
or bequest.” To qualify for the first category of innocent
NOTE 2—Acceptable exposure levels are dependent upon the target
landowner, such person must have, among other things, made
species and may vary based upon other stressors in the habitat.
all appropriate inquiries on or before the date of purchase,
3.2.21 exposure pathway—the course a chemical of concern
must exercise due care with respect to hazardous substances
takes from the source area(s) to a receptor or relevant ecologi-
and take precautions against foreseeable acts or omissions of
cal receptor and habitat. An exposure pathway describes the
third parties and the consequences that could foreseeably result
mechanism by which an individual or population is exposed to
fromsuchactsoromissionspursuantto42U.S.C.§9607(b)(3),
a chemical of concern originating from a site. Each exposure
and must perform continuing obligations. Furthermore, the all
pathway includes a source or release from a source of a
appropriate inquiries must not have resulted in knowledge of
chemical of concern, a point of exposure,an exposure route,
hazardous substances. If it does, then such person would
and the potential receptors or relevant ecological receptors and
typically “know” or “have reason to know” of hazardous
habitats. If the exposure point is not at the source, a transport
substances and would not qualify as an innocent landowner.
or exposuremediumorboth(forexample,airorwater)arealso
See Legal Appendix X1.3.4 for the other necessary require-
included.
ments that are beyond the scope of this guide.
3.2.22 hazardous substance—any substance as defined in
3.2.25 institutional controls (ICs)—a legal or administrative
CERCLA, 42 U.S.C.§9601(14), as interpreted by USEPA
mechanism designed to limit, prohibit, or condition the use of,
regulations and the courts: “(A) any substance designated
or access to a site or facility (for example, restrictive
pursuant to section 1321(b)(2)(A) of Title 33, (B) any element,
covenants, environmental covenants, easements, and zoning)
compound, mixture, solution, or substance designated pursuant
to eliminate or minimize potential exposure(s) to chemical(s)
tosection9602ofthistitle,(C)anyhazardouswastehavingthe
of concern.
characteristics identified under or listed pursuant to section
3.2.26 land title records—records that affect the title of real
3001 of the Resource Conservation and RecoveryAct of 1976
estate, which may include, among other things, deeds,
(RCRA), as amended, (42 U.S.C. §6921) (but not including
mortgages, leases, land contracts, court orders, easements, and
any waste the regulation of which under RCRA (42
AULs recorded within the recording systems or land registra-
U.S.C.§§6901 et seq.) has been suspended by Act of
tion systems created by state statute in every state and
Congress), (D) any toxic pollutant listed under section 1317(a)
ordinarily administered in the local jurisdiction (usually the
of Title 33, (E) any hazardous air pollutant listed under section
county) in which the property is located. Such records are
112 of the Clean Air Act (42 U.S.C. §7412), and (F) any
publicly accessible, though the process of searching for and
imminently hazardous chemical substance or mixture with
finding land title records often requires specialized expertise or
respect to which the Administrator (of EPA) has taken action
knowledge of the local system. Information about the title to
pursuant to section 2606 ofTitle 15.The term does not include
thepropertythatisfiledorstoredinanyplaceotherthanwhere
petroleum, including crude oil or any fraction thereof which is
land title records are, by law or custom, recorded for the local
not otherwise specifically listed or designated as a hazardous
jurisdiction in which the property is located, are not considered
substance under subparagraphs (A) through (F) of this
land title records.
paragraph, and the term does not include natural gas, natural
gas liquids, liquefied natural gas, or synthetic gas usable for 3.2.27 landowner liability protections (LLP)—means CER-
fuel (or mixtures of natural gas and such synthetic gas).” CLA LLPs, as well as liability protections provided under state
E2790 − 20
law to property purchasers, parties performing cleanup actions 3.2.36 potentially responsible party (PRP)—any individual
under certain state programs (e.g., voluntary cleanup programs or entity including owners, operators, transporters, or genera-
offering liability protection upon completion), or other prop- tors who may be liable under CERCLA §107(a), 42 U.S.C.
erty owners. In order to qualify for LLPs, CERCLA and state §9607(a).
laws set requirements for the liability protection seeker to
3.2.37 practically reviewable—information that is practi-
perform one or more continuing obligations, such as comply-
cally reviewable means that the in
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